Order Michigan Supreme Court 

Lansing, Michigan 

April 21, 2006 Clifford W. Taylor,

 Chief Justice 

129800 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, 

Robert P. Young, Jr. 

Stephen J. Markman,

 Justices 

v SC: 129800 

 COA: 256196 

Genesee CC: 04-013707-FC 

MICHAEL RAY GUSTER,

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the September 8, 2005 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

KELLY, J., dissents and states as follows: 

The complainant, defendant’s girlfriend, accused him of sexually assaulting her. 

Defendant contended that any sexual contact between them was consensual. The jury 

believed the complainant and convicted defendant of criminal sexual conduct in the third 

degree. 

Defendant appealed to the Court of Appeals arguing, among other things, that the 

judge denied him a fair trial by consistently referring to the complainant in the jury’s 

presence as “the victim.” The Court of Appeals recognized that the judge had repeatedly 

used the term “victim” in place of “complainant.” But it concluded that the judge’s 

instruction to the jury to disregard any apparent bias by the court was sufficient to protect 

defendant’s rights. I cannot agree. 

Conviction or exoneration in this case hinged on the credibility of defendant and 

of the complainant. The jury’s verdict may have teetered on a small point. The trial 

judge’s repeated reference to the complainant as “the victim” could have tipped the jury 

in favor of conviction. 
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2 

I am aware that MCL 750.520a(p) defines “the person alleging to have been 

subjected to criminal sexual conduct” as “the victim.” But, referring to the complainant 

as “the victim” where a factual question exists whether there even was a victim 

necessarily places the defendant at an unfair disadvantage. In such cases, I believe that 

the judge should not use the statutory term for the complaining witness during a jury trial. 

I disagree with the Court of Appeals conclusion that the curative instruction 

safeguarded defendant’s right to a fair trial. When a judge repeatedly suggests to jurors 

that there was a victim, it is improbable that a simple instruction suffices to remove the 

thought from the jurors’ minds. 

In this case the judge’s references to the complainant as the victim had the 

practical effect of undermining defendant’s defense that there had been no victim. For 

these reasons, I would reverse the decision of the Court of Appeals, vacate defendant’s 

conviction, and remand this case for a new trial. 

The facts here illustrate the importance, when cases are tried before juries, of trial 

judges remaining constantly vigilant not to inappropriately influence jurors’ decisions. 

The right to a fair trial being a cornerstone of our jurisprudence, judges must make every 

effort to ensure that those accused of committing a crime receive a fair trial. It is crucial 

for trial judges to remember the powerful influence they exert over juries. A judge’s 

suggestion to the jury that the accuser is truthful places the fairness of the proceedings in 

doubt, and the standard jury instruction should not be relied on to erase it. 

p0418 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

April 21, 2006 

Clerk